If the IRS Wants to Read Your Email, the IRS Will Read Your Email

Adam Clark Estes

The Internal Revenue Service already isn't the most popular government agency. The last thing it needed to happen right in the dark heart of tax season, especially when many people are paying higher taxes, was even more bad press this year. Bad press is what it got, though.

The American Civil Liberties Union announced this week that it had obtained a training manual from 2009 in which the IRS tells its agents that they're free to snoop on Americans' emails without a warrant. The handbook says that "emails and other transmissions generally lose their reasonable expectation of privacy and thus their Fourth Amendment protection once they have been sent from an individual's computer." Saying that sort of thing is like saying Americans wouldn't mind if Google just published the contents of our inboxes on its blog.

This is a very worrisome revelation for a couple of different reasons. At face value, it suggests that the taxman has been reading more than your 1040 forms. This just adds to an already thriving community of conspiracy theories about how evil the IRS is. But on a more serious level, it suggests that government agencies are violating a fairly recent court ruling that explicitly requires them to obtain a warrant before searching citizens' email inboxes.

The IRS's misunderstanding the Constitution likely relates to the Electronic Communications Privacy Act, an outdated law that allowed for warrantless email searches for messages older than 180 days. It's unclear why that specific limit was put in place which is part of why a judge ruled that in the case United States v. Warshak that email is indeed protected by the Fourth Amendment and warrants were required.

At first, you might think, "Oh, well surely the IRS updated its handbook to reflect the very significant change." But the agency did not. A March 2011 version of the document shows no difference and even says that "investigators can obtain everything in an account except for unopened e-mail or voice mail stored with a provider for 180 days or less." At this point, Congress is moving to change the law for good, and even the Justice Department says warrants should be required for these kinds of searches.

So why is the IRS disobeying the court? Who knows. They wouldn't comment on the issue.